Troy Senik: Lame-duck presidents don't have to care

In the Tea Party fervor of recent years, many long-overlooked provisions of the Constitution have generated renewed interest. The 10th Amendment – leaving powers not explicitly given to the federal government to either the states or the people – is newly fashionable among those wanting to restrain Washington's influence. Some conservatives even pine for the repeal of the 17th Amendment, ratified in 1913, which gave the power to select U.S. senators to the voters instead of state legislatures.

One exercise in constitutional restoration you won't hear much enthusiasm for, however, is getting rid of presidential term limits. From the time the Constitution went into effect in 1789 until the ratification of the 22nd Amendment in 1951, there was no legal limit on how long a president could serve in office. Because George Washington stepped down after two terms, the practice became an informal norm, but it was never codified into law – never, that is, until Franklin Roosevelt became the first president to break the tradition.

Roosevelt ran for – and won – four consecutive terms, notching his first victory in 1932 and his last in 1944, his health so depleted that he would be dead less than three months after taking his final oath of office. It was the reaction to this perceived overreach that galvanized the 22nd Amendment.

Fearing executive hegemony in the aftermath of Roosevelt's tenure was not, it should be noted, an exercise in paranoia. It wasn't just that FDR had stood for the presidency four times. It was that the New Deal had broken all the traditional bounds of the state. It was that Roosevelt, impatient with the separation of powers, had threatened to pack the Supreme Court full of justices who would rubber-stamp his policies. It was that Europe had recently provided examples of how quickly authoritarianism could take root. While it was Congress, the Supreme Court and the voters who failed to bring Roosevelt to heel, it was the institution of the presidency that wound up paying the price.

That price has turned out to be rather high. For proof, look no further than the announcement from the Obama administration this week that it would delay until 2016 Obamacare's requirement that midsized companies provide health care for their employees.

The policy is pure, crass politics – an effort to stave off the inevitable economic dislocation until Obama is on his way out of office, and the media is distracted by coverage of the campaign to succeed him. Were Obama eligible to stand for office again, he could pay a price for such shameless opportunism. With no option other than retirement, however, he's essentially playing with the house's money. What real consequence could there be?

This is precisely why the founders rejected term limits for the president. In Federalist No. 72, Alexander Hamilton wrote, “There are few men who would not feel much less zeal in the discharge of a duty when they were conscious that the advantages of the station with which it was connected must be relinquished at a determinate period, than when they were permitted to entertain a hope of obtaining, by meriting, a continuance of them.” Translation: Presidents get senioritis, too. Telling a guy you're not going to renew his contract is generally not a recipe for productivity or responsiveness.

It's likely not an accident that the curse of presidential second terms has become a meme in the years since the 22nd Amendment's passage. In addition to the lack of institutional incentives for the president, there's also the fact that hostile members of Congress can simply choose to wait out a lame-duck chief executive. With four of our five most-recent presidents having won a second term, the cost in forgone opportunities has been enormous.

Expanding the potential length of the presidency may seem an odd response to an era in which the executive branch has become increasingly powerful. In this case, however, influence is coupled with responsibility, something too often missing at the White House.

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